After examining the briefs and appellate record, this panel has determined *

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. This order and judgment is not binding

precedent, except under the doctrines of law of the case, res judicata, and

collateral estoppel. The court generally disfavors the citation of orders and

judgments; nevertheless, an order and judgment may be cited under the terms and

conditions of 10th Cir. R. 36.3. 

F I LED

United States Court of Appeals

Tenth Circuit

July 14, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

GILBERT DE WAYNE DAVIS,

Petitioner-Appellant,

v.

CITIFINANCIAL AUTO

CORPORATION, formerly known as

Arcadia Financial Ltd.; CHASE

HOME FINANCE LLC,

Respondents-Appellees.

No. 05-1522

(D.C. No. 05-CV-1867-WYD-BNB)

(D. Colo.)

ORDER AND JUDGMENT

*

Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.

Petitioner Gilbert De Wayne Davis appeals from an order of the district

court dismissing his petition for mandamus and/or prohibition and denying his

motion for a temporary restraining order. We affirm.
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Background

Mr. Davis commenced his suit in district court on September 26, 2005 by

filing a petition captioned “28 U.S.C. § 1361, Fed. R. Civ. P. Rule 81 Petition for

a Writ of Mandamus or Prohibition Directed to the United States Bankruptcy

Court for the District of Colorado.” R., Doc. 1 at 1. The petition alleged that on

June 2, 2005, Mr. Davis sought relief under Chapter 7 of the Bankruptcy Code. 

On July 14, 2005, the bankruptcy judge entered an order granting respondent

Chase Home Finance LLC’s motion for relief from the automatic stay. Then on

August 24, 2005, the bankruptcy judge entered an order granting respondent

Citifinancial Auto Corporation’s motion for relief from the automatic stay. 

Mr. Davis’ district court petition sought an order vacating both of the orders for

relief from the automatic stay, and his motion for a temporary restraining order

(filed contemporaneously) sought an order enjoining enforcement of those orders.

The district court referred the matter to a magistrate judge, who

recommended that the motion for a temporary restraining order be denied, and

that the petition be dismissed for lack of subject matter jurisdiction. After

receiving Mr. Davis’ objection, the district court reviewed the matter de novo, 

accepted the recommendation, entered an order denying the motion for a

temporary restraining order, and dismissed the petition for lack of subject matter

jurisdiction. This appeal followed.
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Discussion

“We review the district court’s dismissal for lack of subject matter

jurisdiction de novo.” U.S. West, Inc. v. Tristani, 182 F.3d 1202, 1206 (10th Cir.

1999). 

The record reveals that Mr. Davis filed an appeal from the bankruptcy

judge’s July 14, 2005 order with the Bankruptcy Appellate Panel (BAP) on

August 9, 2005. On August 24, 2005, BAP dismissed the appeal as untimely. 

Any appeal of BAP’s decision denying the appeal as untimely belonged in this

court – not the district court. 28 U.S.C. § 158(c)(2). Therefore, to the extent that

Mr. Davis’ petition is an attempted appeal from the bankruptcy judge’s July 14

order, the district court lacked jurisdiction.

As to the August 24, 2005 order of the bankruptcy judge, Mr. Davis never

appealed that order. While such an appeal may lie in the district court, any such

notice of appeal must be filed within ten days of the entry of the judgment, order,

or decree appealed. Fed. R. Bankr. P. 8002(a). Even if Mr. Davis’ September 25,

2005 petition is construed as a notice of appeal, it was untimely. Again, to the

extent that Mr. Davis’ petition is an attempted appeal of the bankruptcy judge’s

August 24 order, the district court lacked jurisdiction.

Alternatively, construing Mr. Davis’ petition as seeking the extraordinary

relief of mandamus and/or prohibition, it was also properly dismissed. Our

consideration of this claim begins and ends with the proposition that “the party
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seeking issuance of the writ must have no other adequate means to attain the

relief he desires.” Kaiser Steel Corp. v. Frates (In re Kaiser Steel Corp.),

911 F.2d 380, 386 (10th Cir. 1990) (quotation omitted). The remedy of appeal

was available to Mr. Davis, and therefore, the district court correctly found that

a writ was inappropriate.

For the reasons stated in the magistrate judge’s recommendation and the

district court’s order, the judgment is AFFIRMED.

Entered for the Court

Stephen H. Anderson

Circuit Judge